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Judgment
L.N. Mittal, J.—Defendant-Municipal Corporation, Thanesar has filed this revision petition u/s 115 of the CPC (in short, CPC) impugning judgment and decree dated 09.03.2009 passed by learned District Judge, Kurukshetra. Facts in this case are not in dispute. Respondent-plaintiff Dr. Ravi Gupta is running Gagan Hospital at Kurukshetra. Haryana Government vide notification dated 16.05.2000 (hereinafter referred to as first notification) directed the municipalities in the entire State to impose tax on professions, trades, callings and employments (hereinafter referred to as professional tax) in the manner and at the rates specified in the notification. Accordingly, the plaintiff paid professional tax of Rs. 1500/- vide cheque dated 27.08.2001, Rs. 1313/- in cash vide receipt dated 24.01.2004 and Rs. 1500/- vide receipt dated 10.02.2004. Haryana State vide notification dated 17.02.2004 (hereinafter called as the second notification) rescinded the first notification.
Case of the plaintiff in the suit is that on account of rescission of the first notification by the second notification, he is entitled to refund of the aforesaid amount of Rs. 4,313/- paid by him as professional tax to the defendant.
The defendant contested the claim of the plaintiff by pleading that no professional tax has been recovered from the plaintiff after issuance of the second notification whereby first notification levying professional tax was rescinded whereas the amount of professional tax recovered from the plaintiff before issuance of second notification is not liable to be refunded.
Trial Court vide judgment and decree dated 23.04.2008 dismissed the plaintiff''s suit. However, learned lower appellate Court vide judgment and decree dated 09.03.2009 has decreed the plaintiff''s suit for recovery of the suit amount of Rs. 4313/- with interest thereon @ 6% per annum from the date of filing of suit till recovery. Feeling aggrieved, defendant has filed this revision petition to challenge judgment and decree of the lower appellate Court. Revision petition has been filed because second appeal does not lie in view of Section 102 CPC as the original suit amount did not exceed Rs. 25,000/-.
I have heard counsel for the petitioner and the respondent-plaintiff in person and perused the case file.
Counsel for the defendant-petitioner contended that the second notification rescinding the first notification, was not retrospective and therefore, the first notification remained operative till issuance of the second notification and consequently, suit amount recovered as professional tax from the plaintiff during operational period of the first notification is not liable to be refunded.
Respondent-plaintiff contended that by not refunding the professional tax amount paid by the plaintiff, the defendant Municipal Corporation is punishing the honest taxpayers like the plaintiff and therefore, the amount paid by the plaintiff has been rightly ordered to be refunded to him by the lower appellate Court. It was submitted that defendant municipality has not taken any steps for recovery of professional tax for the period during which first notification remained in operation from many persons liable to pay the same.
I have carefully considered the rival contentions. Perusal of second notification reveals that the first notification was rescinded by the second notification. However, the rescission of the first notification was not retrospective. On the contrary, unless it is specified expressly or impliedly, the notification would be prospective in operation. Consequently the second notification rescinding the first notification is prospective and not retrospective in operation. In other words, the first notification remained in operation since the date of its issuance till the issuance of the second notification. When the first notification was rescinded by second notification, it did not make the first notification inoperative since inception. It is thus apparent that the first notification levying professional tax remained in operation since its issuance till the issuance of the second notification rescinding the former one. Consequently, professional tax paid by plaintiff during operation of the first notification is not liable to be refunded. Finding of the lower Appellate Court to the contrary is illegal and suffers from jurisdictional error.
As regards contention of the plaintiff regarding punishment of the honest taxpayers by not recovering the professional tax for the aforesaid period from the defaulters, no foundation for the same has been laid in the suit by pleading necessary facts. Counsel for defendant-petitioner is also not aware of the factual position in this regard as to whether any steps were initiated by the defendant or not for recovery of the professional tax for the relevant period from the defaulters. In these circumstances, defendant may be directed to take necessary steps in accordance with law for recovery of the professional tax for the relevant period from the defaulters provided that it is still recoverable and is not barred by limitation or any other law.
Resultantly the instant revision petition is allowed. Judgment and decree passed by the lower appellate Court are set aside. Judgment and decree passed by the trial Court dismissing the suit of the plaintiff are restored. The parties are, however, left to suffer their respective costs throughout. Amount deposited by the defendant with the Registry of this Court pursuant to interim stay order, shall be refunded to the defendant-petitioner. The defendant-petitioner shall take necessary action at the earliest in accordance with observations made in the preceding paragraph. Pending civil miscellaneous application, if any, is disposed of as infructuous.